Legal Theory Lexicon: Hypotheticals

Introduction

The hypothetical (or “hypo”) is so familiar to anyone who has received a legal education in the United States that you might ask, “Can there possibly be anything of theoretical interest in the hypothetical?” And in the same vein, “We all know what hypos are.” The purpose of this post is to reflect on the “hypothetical,” with the special purpose of equipping law students with an interest in legal theory for the task of thinking rigorously and analytically about hypotheticals, what they are, what they can and can’t accomplish, how to construct them, and how to maneuver around them.

What is a hypothetical?

Merriam-Webster defines hypothetical as “being or involving a hypothesis : CONJECTURAL,” and hypothesis as “an assumption or concession made for the sake of argument” or “a tentative assumption made in order to draw out and test its logical or empirical consequences,” from the Greek from hypotithenai, “to put under.”

In American law schools, the pure hypothetical is a counterfactual variation on the fact pattern of an actual case. The hypothetical plays an important role in the Socratic style of law school teaching.

Here is a very simple example. If the actual case involved a contract between Ben and Alice, in which Alice agreed in writing to fix Ben’s roof, and Ben agreed to pay Alice $100, Alice did not perform, and Ben had to pay $200 to another roofer, we might get hypos like the following:

What if the agreement had been oral instead of in writing?
What if the contract price had been $300?
What if Alice had been a minor?
What if the contract had not specified a price?
What if Alice did the job, but the roof still leaked?

And so on.

The Purposes of Hypotheticals

Why do law professors use hypotheticals?

As a tool for the explication of legal doctrine.
As a tool for exploring the moral underpinnings of legal rules.
As a tool for exploring the consequences of legal rules.

Law students quickly become familiar with the first of the three kinds of hypotheticals. They read a case and learn a rule. The professor then poses hypothetical variations on the case to test the student’s knowledge of the rule. Typically, the hypo is followed with a question like, “What result?” But legal education is also about the normative analysis of legal doctrine, and hypotheticals can also be used to explore our intuitions about the morality of the law. Such hypos frequently end with, “What should the result be?” And the follow-up question, “That’s the rule, but do you think that is the right result?” Finally, contemporary legal education sometimes incorporates a healthy dose of economic analysis. So, we can add information about prices to hypos and then ask what consequences a rule will produce if the various actors are “rational” in the economic sense.

“Beware the hypothetical, my son. The laws that catch, the facts that bite.”

Hypos can be fun, but many law students don’t have a good time when they are led to contradict themselves by a series of hypos. Having learned not to contradict yourself, you may then find that by remaining consistent, you can be led, step by step, to an answer that is consistent but absurd. If you can adopt a Zen-like attitude to this process, there is nothing wrong with going along for the ride. Socratic dialogue is not a game, and law professors actually need students to make certain common mistakes in order to get certain points across. However, there are a number of techniques that law students can learn to become more effective at the hypotheticals game.

Lesson Number One: Fight the hypothetical, lose the war!

The first and most important lesson to learn about hypotheticals is that you can’t get anywhere by fighting the set up. (I will qualify this rule of thumb in Lesson Number Five.) One of the first ways that law students begin to fight back against hypotheticals is to resist the “hypothesis.” One way to do this is to fight the facts. “That wouldn’t happen.” Or “In the real world, it would happen differently.” Fighting the facts only delays the inevitable. At the worst, you simply get asked the same question again, “O.K., but for the sake of argument, assume these facts.” At the best, you get another version of the same hypo that works around your factual objection. As a general rule, don’t fight the facts.

Lesson Number Two: Watch for Slippery Slopes

Every law student learns to recognize the following pattern: the professor starts with a fact pattern, where the conclusion is obvious. Then one fact is varied by degrees. There doesn’t seem to be a logical stopping point, so if the student wants to be consistent, they are led to an absurd conclusion. We have a contract between Alice and Ben. Is $100 valid consideration? $10? $1? 1 cent? A peppercorn? Half a peppercorn? 1/100th of a peppercorn? A speck of dust? The atoms that are expelled when Ben says, “I agree”? You are on a slippery slope, and you desperately want to get off! Usually, you will realize that you are on the slippery slope early on in the sequence of questions. Here are some ways to get off: (1) Say, “I see we are on a slippery slope here.” Then just go along for the ride, and when you reach the bottom, just say, “Well, I see we are at the bottom of the slippery slope now!” You are playing along with the game, but also showing that you are smart enough to see what is happening. Or (2) When you start to feel a twinge about the hypo, say, “My answer is still ‘Yes,’ but we are starting to enter the gray zone.” (If you want to be fancy, say “. . . but we are starting to enter the penumbra of the rule.”) When you think that you’ve hit a truly hard case, say “Now, we are definitely in the gray zone. It’s really a judgment call which could go either way.” And then when you get to the bottom of the slippery slope, you can say, “Now, it’s clear, the answer is no.” This second strategy is simply the way to make the point that there are lots of legal rules that require a “Yes” or “No” answer (they are bivalent), when the real world is a matter of degrees. Slippery slope hypos are simply the law professor’s way of getting you to see this phenomenon.

For more on the relationship, between facts that are matters of degree and rules that require a yes or no answer, see Legal Theory Lexicon 072: Scalars and Binaries.

Lesson Number Three: Watch Out for Cold Rules and Hot Facts

This is a favorite law professor trick. You take a case where the rule is settled, and then come up with facts that have accidental features that make the application of the rule morally unattractive. “Starving babies” are a common device. But should Alice have to pay Ben damages if Alice has a “starving baby”? Of course not, you say to yourself, but in fact whether or not Alice’s baby is hungry is probably irrelevant to the legal question whether Alice is liable to Ben for breach of contract. Again, there are several ways to play this. Here is the simplest: (1) Simply point out the divergence between your legal and moral intuitions. “Well, morally speaking, it seems repugnant to make Alice pay, but I don’t see how her financial needs provide her with a legal defense.” Here is another alternative: (2) Try to find the legal category that fits your moral intuition. In criminal law, the moral problem may provide the basis for a defense of “necessity.” Obviously, these two strategies can be combined: “Well, morally speaking, it seems repugnant to make Alice pay, but I don’t see how her financial needs provide her with a legal defense. Maybe she could argue that there is a defense of ‘necessity’ to actions for breach of contract.”

Lesson Number Four: Easy Cases, Hard Cases, and Wild Cases

One way to slice the hypothetical pie is into cases that are easy, hard, and wild:

Easy cases involve a straightforward application of a legal rule. Most hypos are easy cases. You may make a mistake and learn something about the rule, but there is nothing funny going on here. Easy cases are the bread and butter of legal education.

Hard cases involve a genuinely difficult legal problem. Sometimes there is a black letter rule that covers the facts of a hypo, but sometimes there isn’t. Why not? Many reasons, including: (1) In a common-law system, there are simply many issues that have never been decided–“novel questions” where no precedent or rule is binding; (2) Rules sometimes have “gaps,” places where the law simply is unclear because the rule was not formulated with that sort of case in mind; (3) Rules sometimes conflict with one another, and unless the conflict has already been resolved, the result is a “hard case.” When you get a hypo that involves a genuinely hard case, your job is to figure out what the law should be. In a way, the whole point of the first year of law school is to give you the tools necessary so that you can argue both sides of a hard case on your own, without any help from professors, outlines, treatises, or law review articles. How do you do this? Well, legal theorists disagree about the best method, but you can always make three kinds of arguments:

(1) Arguments of fit. You can argue for a rule or result on the grounds that it best fits the legal landscape. Arguments of fit are about consistency or coherence. Frequently, you make arguments of fit based on analogies between the rule in situation A (that is settled) and the rule that should obtain in situation B (where the law is unclear).

(2) Arguments of principle. You can argue for a rule or result on the ground that it is fair or that it respects the rights of the parties. It is fair that Y should recover damages, because Y has a moral right to the integrity of her body.

(3) Arguments of policy. You can argue for a rule or result on the ground that it will lead to good consequences. What consequences are good? Deep question! But most people will agree that (1) economic efficiency, (2) health, (3) saving lives, and (4) human happiness and the absence of human suffering, are all goods that should be promoted.

Hard cases are the meat and potatoes of law school. For more on hard cases and the idea that some legal questions are open or contested, see Legal Theory Lexicon 095: Open and Contested Questions of Law.

Wild Cases involve fanciful fact patterns or bizarre legal rules. Suppose that on Mars, the rule is that crime-of-passion murders aren’t punished at all, because the chances of recidivism are so low. Suppose that everyone over the age of 34 is killed by a mysterious virus. Can a 32-year-old serve as President, even though the Constitution sets a minimum age of 35? Wild cases are frequently constructed to serve as “intuition pumps.” That is, the wild case is constructed so as to generate a particular reaction–an intuition about how the case should be treated. Always be careful about the intuitions generated by wild cases. On the one hand, the intuitions pumped by a wild case can be illuminating–they can help you to an insight that you would otherwise have difficulty grasping. On the other hand, intuition pumps can be misleading. The set up of the wild case may be cleverly (or accidentally) designed so that a legally or morally irrelevant feature of the case is doing the work–pumping the intuition. When you are questioned about a wild case, you should simply give your reaction–your gut instinct. But it is also fair to qualify your answer: “My answer is yes, but this case is so wild that I really don’t feel very sure about my intuitions.” Wild cases are the dessert of law school.

Lesson Number Five: When You Can Fight the Hypothetical

Lesson Number One said that you can’t get anywhere by fighting the set up. That is right almost all of the time, but it isn’t right always. Here is the distinction that matters: there is a difference between fighting a hypothetical and interrogating one. Fighting the hypo means refusing to accept the stipulation—“that wouldn’t happen.” Interrogating the hypo means accepting the stipulation and then showing exactly what it does and does not establish. The first move is almost always a mistake. The second is frequently the best answer available. There are three situations in which interrogation is the right response.

(1) The stipulation is incoherent. Once in a while a hypo asks you to assume something that cannot be assumed—that the contract is both valid and void, or that Alice both did and did not accept Ben’s offer. When this happens, you are not refusing to play the game; you are pointing out that there is nothing to assume. Say so directly, and then offer to take the hypo in whichever direction the professor prefers. But be careful here. Most hypos that feel incoherent are merely unfamiliar, and the charge of incoherence is embarrassing when it turns out to be wrong.

(2) The hypo begs the question. Sometimes the fact pattern smuggles the legal conclusion into the facts. “Suppose that Alice unreasonably refused to perform.” But whether Alice’s refusal was unreasonable is the very question the rule asks. The right move is to separate the raw facts from the legal characterization: “If you mean that Alice refused after Ben offered to pay in advance, then the question is whether that refusal was reasonable, and I would argue that . . .”

(3) The facts given don’t settle the question. Sometimes a hypo simply omits a fact that the rule requires. The answer here is not “I can’t say,” which sounds like surrender, but “it depends on X, and here is why X matters.” Identifying the missing fact is almost always a better answer than guessing at it.

Notice what these three situations have in common. In each of them, you accept the hypothetical on its own terms and then say something about its structure. That is the opposite of fighting the facts, and it is the reason the rule of thumb in Lesson Number One is a rule of thumb and not an absolute.

Conclusion

There is a lot more to learn about hypotheticals, but these five lessons should get you started. If you want to go deeper, two threads are worth pulling. The philosophical literature on thought experiments takes up the question of what imaginary cases can teach us, and the practice of testing general principles against your reactions to particular cases has a name in legal and moral theory: reflective equilibrium.

Related Lexicon Entries

Legal Theory Lexicon 005: Holdings

Legal Theory Lexicon 026: Rules, Standards, Principles, Catalogs, and Discretion

Legal Theory Lexicon 032: Fit and Justification

Legal Theory Lexicon 036: Indeterminacy, Determinacy, and Underdeterminacy

Legal Theory Lexicon 051: Vagueness and Ambiguity

Legal Theory Lexicon 064: Possibility and Necessity

Legal Theory Lexicon 067: The Priority of the Particular

Legal Theory Lexicon 069: Reflective Equilibrium

Legal Theory Lexicon 072: Scalars and Binaries

Legal Theory Lexicon 081: The Bad Man Thought Experiment

Legal Theory Lexicon 095: Open and Contested Questions of Law